from the oops dept

The saga of Mississippi Attorney General Jim Hood and his cozy ties to Hollywood continue to come out. He's been claiming that, sure, he met with Hollywood's top lawyer, Tom Perrelli, had him prep Hood for a meeting with Google, and even took a ~4,000 word angry letter that Perrelli wrote for him, signed it as his own and sent it to Google -- but he did all that without knowing that Perrelli worked for Hollywood's top lobbying arm, the MPAA. Uh huh.

And then in a press conference, he insisted that he was doing this out of his own interest in protecting the children -- but also admitted that his office didn't have any intellectual property experts and didn't have a million dollars to do an investigation (approximately the amount the MPAA's leaked emails show them discussing to fund this investigation) and that he needed to rely on such help from "victims" to make his case. It's fairly rare, though, that "victims" of a crime run the actual law enforcement investigation and fund it as well.

Still, in that last post, we also mentioned how Hood implied that anyone suggesting he was "paid off" might be defaming him, and apparently also stated that he wasn't getting any money from Hollywood, encouraging reporters to "check records."

Hood: Not getting any money from Hollywood as far as he knows. Encouraged us to check records.

Okay then. Let's... check the records. Here, for example, is the MPAA's Political Action Committee apparently giving $2,500 to an operation called "The Friends of Jim Hood."

And, you can also look at the public record of who donated to his campaign, which pretty clearly shows donations to his campaign from NBC Universal and 20th Century Fox.

Oh, and for good measure, the RIAA as well:

And then there are some that are not as direct, but are at least noteworthy. First up, we've got the "Mike Moore Law Firm." Now, this might not be that surprising. Moore is a long time friend of Hood and preceded him as Attorney General. Moore apparently helped Hood get into politics and the two are regularly seen together. So it's no surprise that Moore would donate to his campaign. But it's at least noteworthy because the NY Times revealed that a Hollywood front group, the Digital Consumer's Alliance, which is funded by the movie studios, hired Moore as a lobbyist. So, at the very least, this may count partially as money from Hollywood:

There were a few other interesting ones, but the other one I'll point to is from the Patrick Lynch Group. It's a "government affairs" operation focused on lobbying state attorneys general. But if you look at its page listing out when it's "in the news," a large number of them involve stories attacking Google. Here's an op-ed written by Patrick Lynch a few years ago attacking Google, which notes that he represents "FairSearch.org," which is a somewhat infamous Microsoft front group that has been behind a variety of attacks on Google throughout the years. So it may not be "Hollywood" money directly, but it's a top lobbyist for an effort to attack Google.

None of that, of course, means that Hood is, in any way, beholden to this kind of money. This is just the nature of politics. But Hood was the one who directly dared reporters to check the record and said he hadn't received money from such sources. That's wrong. He did. The least he can do is admit it.

from the convinced-by-the-other-ruling dept

A few weeks ago, we wrote about how Sirius XM had lost its case concerning the public performance rights over pre-1972 sound recordings by the band The Turtles. As we noted, this ruling effectively upset decades of consensus about public performance rights for pre-1972 works. When that ruling came out, we noted that the judge, in a nearly identical case brought by the RIAA, appeared to be leaning in the opposite direction. It appears that the judge, Mary Strobel, read the other ruling and found it convincing enough to lean back in the other direction. While not a final determination in the case, Strobel has issued a ruling (pdf) that makes it pretty clear that Sirius XM is likely to lose, based on her agreement with that other ruling.

Having considered the additional authority, the
papers submitted and arguments of counsel, the court is persuaded that it should
change its tentative ruling.

The ruling itself is more of an essay of "on the one hand, on the other hand" arguments, rather than a typical judicial ruling (in many ways making it more readable), with the judge more or less suggesting that she's not entirely comfortable with this outcome, but that based on the plain language of California's state copyright law, this is the best way to read the law.

Of course, the real mess here is because of the different treatment of pre-1972 recordings. Congress should have fixed this years ago by just making pre-1972 recordings subject to federal copyright law. Except... the recording industry has actually fought hard against this. The hypocrisy here is huge. While the recording industry has fought so hard against making pre-1972 sound recordings subject to federal copyright laws, now they suddenly want aspects of federal copyright law (like public performance rights which did not exist under previous laws) to apply to those very same works. If Congress made it so those works were under federal copyright, there wouldn't be an issue and all these works would be treated identically. But the truth is that the RIAA wants to keep these works out of federal copyright law to use them as a weapon against internet innovation. With rulings like these, it can hold companies like Pandora hostage, since those works wouldn't be subject to compulsory rates. As always, it's all about the RIAA seeking to hold back innovative services unless they'll go bankrupt in paying the RIAA.

from the keep-scroungingn-for-loose-change dept

It's no secret that the legacy recording industry players are constantly searching for new ways to make money. Of course, they don't seem all that keen on actually searching for new business models to make money, but rather they tend to default to new ways to squeeze money out of others through legal changes or lawsuits. That's what happens when you have an industry dominated by lawyers, rather than innovators. It's why so many new music services end up getting sued. It's why ASCAP tried to declare that ringtones were a public performance (ditto for the 30 second previews of songs at iTunes). Basically, these industries just go searching under the couch cushions for spare change to sue for because that's how they operate.

The latest such example is the AARC -- the Alliance of Artists and Recording Companies -- deciding to file a lawsuit demanding $2,500 for every car in which Ford and GM have installed CD devices that will automatically rip CDs into MP3s to store on a local hard drive. The AARC is a smaller and little known collection society. It was created solely to collect fees from the Audio Home Recording Act (AHRA), one of the many (many) laws that the RIAA foisted upon the world in fear over the rise of digital music. It was designed as something of a "compromise" between the RIAA and the computing and consumer electronics industry. The focus was supposedly to better enable personal, non-commercial home copies of music, while putting royalties on devices used to make serial (repeated) copies.

The problem is that the AHRA is basically a deadletter act, with little real standing in the world today, partly because the act itself killed the market for such devices. The RIAA had tried to use it in the late 1990s to ban the mp3 player (or, well, to tax them to death). But, thankfully, a court in RIAA v. Diamond rejected that interpretation of the law, making mp3 players perfectly legal (without the corresponding royalty tax). That ruling, which destroyed the RIAA's (wrong) interpretation of the law, also opened up the wonderful digital music world we have today, where you can store thousands of songs in your pocket. Without the RIAA v. Diamond ruling, it's unlikely that we'd ever have the iPod.

There are still a very small number of things that are supposedly covered by the AHRA, but AARC collects a tiny, tiny amount of money. The Copyright Office's data shows a total of $748,277.72 in 2013. That's down from previous years, but at it's very highest AARC collected $5.3 million, and most years it was closer to $2 million. Oh, and in case you're wondering, almost none of that money actually gets paid out. The last year that the Copyright Office has published details concerning these fees, 2010, it notes that AARC collected $1.75 million... and paid out just $7,894.84. Yes, you read that right. AARC collected nearly $2 million, but gave less than $8,000 to copyright holders (likely the major labels, who probably didn't give any of that money to actual artists). The previous year, it paid out a whopping $16,564.63.

However, suddenly AARC seems to think that these CD-to-mp3 devices violate the law, and the auto companies and the electronics firms that make the devices, Denso and Clarion, must pay. The AARC is pulling out all the stops to explain why the lawsuit makes sense, focusing on claims by GM (in its marketing material) that "the hard drive will not accept photos or other sorts of data" but just music. This is in part because of the Diamond ruling noted (correctly) that a general purpose hard drive doesn't apply. But the AARC appears to be totally ignoring other key parts of the ruling.

For example, the court focused on the fact that the AHRA was targeted towards devices that are making more copies of works, and not on attempts to make recordings for private, non-commercial use. Here's what the court said about Diamond's Rio mp3 player (SCMS is the DRM the AHRA required device manufacturers install -- the Rio didn't have it, because they noted you can't copy works off the device, so it wasn't needed):

the Rio does not permit such further copies to be made because it simply cannot download or transmit the files that it stores to any other device. Thus, the Rio without SCMS inherently allows less copying than SCMS permits.

In fact, the Rio's operation is entirely consistent with the Act's main purpose - the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use."... The Act does so through its home taping exemption, ... which "protects all noncommercial copying by consumers of digital and analog musical recordings," ... The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984) (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act.

In other words, the court recognized that devices that are just recording for home and personal use (and not allowing further copies) fit nicely into the purpose of the act and aren't subject to the royalty rates. It seems likely that the same argument applies to Ford and GM in this case. The AARC coyly claims that "other manufacturers, importers and distributors of comparable music recorders pay the required royalties without controversy," but it doesn't name who actually pays or for what.

Of course, these days, even CD ripping is well on its way to the technological graveyard. If the AARC magically succeeds with this lawsuit, I would imagine it would receive a one-time payout (how much do you think artists will see?), followed by Ford and GM ditching CD rippers from their vehicles, and moving straight to built-in streaming setups via things like Pandora and Spotify. But, you know, these days, the legacy record labels are searching under every damn legal cushion, never once thinking that maybe not trying to demand cash, but rather earning it from willing buyers might make more sense.

from the copyright-as-censorship dept

Another day, another example of copyright as censorship. Today's example comes from the RIAA. TorrentFreak has the story of how the RIAA has suddenly (for no clear reason) decided that ReelRadio's historical archive of radio airchecks is problematic. ReelRadio, created (and apparently last designed) in 1996, is a non-profit organization focused on preserving music radio history. Airchecks are demo reels, showing off the talents of radio announcers, and are a pretty useful and fascinating look into the history of radio. But, as far as the RIAA is concerned, ReelRadio is nothing more than a pirate site. This is despite the fact that ReelRadio actually has a license to play the music that is often incidentally included in airchecks.

“The RIAA has determined that our service fails to meet the requirements for ‘archived programs’, which must be at least five hours in duration and may not be made available for more than two weeks. The service must also display the Title, Artist and Album of each featured song, but only while the recording is being performed,” ReelRadio President Richard Irwin explains.

And then there's this:

“The RIAA insists that we obtain permission from the copyright owners of these old radio broadcasts. Many broadcasters understand the difficulty of this requirement, since nearly all radio stations have changed ownership, format, and call letters, many times over,” Irwin explains.

“Nevertheless, we are expected to provide the RIAA with an explanation of how we have permission from radio stations that no longer exist and copyright owners who have no interest in historic recordings of their property.”

It seems like ReelRadio would have an astoundingly strong fair use defense, but actually taking on the RIAA in court is likely prohibitively expensive (and distracting), though I'd hope that the organization could find some pro bono legal support. TorrentFreak argues that the RIAA may be on "solid ground" legally, but I don't see how this doesn't pass the fair use sniff test. The purpose and character of the use clearly falls into fair use. The nature of the work (an aircheck) also clearly leans towards fair use. The amount and substantiality taken may at first look like it leans against fair use, but the recent Westlaw ruling demonstrated that when it is "necessary" to copy the entire work for the intended purpose, that also supports fair use. It's possible this could weigh against ReelRadio, given that an argument could be made that the airchecks could be "scoped" (i.e., have all music removed), but that would certainly lessen the value of the archive. And, finally, the commercial impact clearly weighs (strongly) towards fair use.

Honestly, I'm curious exactly what kind of "license" the RIAA claims to have sold ReelRadio in the first place, because now it seems like the RIAA has been ripping off ReelRadio for years, demanding payments for something that doesn't need payment. Either way, ReelRadio appears to have taken down over 1,100 of those unscoped airchecks, basically deleting them from history. Thanks, RIAA, for helping to destroy culture and hide it from public view (potentially forever) yet again.

Groups like the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and others that make up the copyright lobby have actively campaigned against the kinds of tools that address these aims.

OnionShare creates direct connections between users, making it an example of peer-to-peer network architecture. The copyright lobby’s got a long history with peer-to-peer: at least since Napster emerged a decade and a half ago, corporate copyright holders have endeavored to destroy examples of the tech. We live today with the disastrous results.

After 15 years of being attacked, villainized, and litigated over, peer-to-peer programs and protocols have become a hard sell for investment and development. And as centralized products have gotten a lion’s share of the attention, their usability and market share have increased as well.

The simple fact is that the fight to protect one business model (out of many possible business models) for the entertainment industry, has clearly had a pretty big negative impact on the development of new tools and services that would lead to greater privacy and security (and a more functioning free press):

The qualities that the copyright lobby dislike about peer-to-peer are precisely the ones that make it a powerful choice for defenders of press freedom and personal privacy. Namely, peer-to-peer offers no convenient mechanism for centralized surveillance or censorship. By design, there’s usually no middleman that can easily record metadata about transfers—who uploaded and downloaded what, when, and from where—or block those transfers.

So, if you're concerned about how much metadata the NSA is scooping up from online services, you have the MPAA and RIAA and its legal fights partially to blame for that. In demonizing distributed, private peer-to-peer applications and protocols, we've been driven increasingly to more centralized offerings. As Higgins further highlights, the third party doctrine, giving less privacy to information held by third parties, makes this situation even worse.

The distinction is further reflected in the U.S. legal system, which often offers data that goes through a third party reduced protection. That premise, the “third party doctrine,” is badly out-of-date, and produces counter-intuitive results in an era where the location of data storage is otherwise abstracted away. Already one Supreme Court Justice, Sonia Sotomayor, has called for reconsidering it. But as long as the third party doctrine exists, architectures like peer-to-peer that allow for direct communication, broadly speaking, provide more privacy protection against invasive government requests.

In short, you have the government wanting to get more access to information, and it can do that on centralized systems -- and combine that with the RIAA/MPAAs of the world fighting to either outlaw or diminish investment in more decentralized systems, and you have a recipe for easy mass surveillance. A decentralized world is important for the internet to work correctly, but we've been increasingly pushed away from that.

The good news is that with all the discussions of surveillance lately, a renewed push is being made for more decentralized systems. The success of decentralized cryptocurrencies like Bitcoin is also helping things along the way. And there are a large number of other projects that are each trying to tackle different aspects of more centralized systems. Hopefully, they won't be deterred by litigation spats focused on just preserving a particular business model as well.

The USTR had just launched a new website with promises of transparency, and we all know how that went. Also, the Supreme Court had just announced that it would hear the Bilski case, giving it a chance to rule firmly on the question of software and business model patents — which it decided not to do, offering an extremely narrow ruling instead.

Over half a millennium ago, in a wonderful and timeless act of innovation, a friar distilled the first-ever batch of Scotch whisky at the Lindores Abbey in Scotland. The order came down this week, on June 1st 1495, from the Exchequer Rolls of Scotland, along with the necessary supplies: "To Friar John Cor, by order of the King, to make aqua vitae, VIII bolls of malt."

from the respect? dept

Yesterday, the music labels, under the guise of RIAA spinoff SoundExchange, along with Congressional Reps. George Holding and John Conyers, announced some new legislation and a coordinated PR campaign for what they're calling "Project72." The official name of the bill is the "Respecting Senior Performers as Essential Cultural Treasures Act" or the RESPECT Act. There is so much hypocrisy and ridiculousness here that it's difficult to know where to start. However, in short, the labels fought hard to keep the situation the way it is today, and a very large number of the musicians the RIAA rolled out in "support" of this new law -- claiming they just want to get paid by music streaming services -- are musicians who got totally screwed over by RIAA labels in the past. How about a little "respect"?

As we've been reporting, there's been an ongoing legal fight over how to handle pre-1972 sound recordings, because they are technically not covered under federal copyright law. This is because, back in 1909, Congress explicitly excluded sound recordings from the Copyright Act, noting that they didn't believe the Constitution allowed copyright to cover sound recordings (think about that for a second...). A variety of state copyright laws (or the equivalent) popped up to try to fill in the gap. With the 1976 Copyright Act, however, sound records made in 1972 and after were covered, leaving all recordings from pre-1972 in a bit of legal limbo. The copyright office has been debating what to do about this for years. So far, it's actually created something of a cultural disaster, because works that should be in the public domain won't be in the public domain for the rest of our lifetimes.

Meanwhile, many have suggested that a perfectly legitimate way of dealing with this would be to just retroactively say that all pre-1972 sound recordings should be brought under federal copyright law. However, the RIAA itself has fought very hard against this. Why? There are a few reasons, but here are a few big ones: (1) Since the copyright lasts so much longer under state laws, they get to keep the copyright longer. (2) They love to use this issue to claim the DMCA's safe harbors don't apply to any user-generated content site that includes pre-1972 sound recordings. It's a backdoor into gutting the DMCA's safe harbors. (3) Unlike federal copyright law, post-1978, there are no termination rights, allowing the original creator to take back their copyrights.

So it seemed particularly hypocritical last month to see SoundExchange suddenly go all crazy around the claim that music streaming sites don't pay royalties on pre-1972 works. Of course, this is, in part, because of the RIAA's own efforts to keep pre-1972 works from being put under federal copyright law. The various state laws don't include a public performance right, and thus there are no necessary licenses for the streaming of such works -- and that's been widely accepted as the law for years. Until now. If the RIAA wanted to change that, it should have helped move those works under federal copyright law, but it has fought hard against it.

Instead, we get "The RESPECT Act" which would effectively only extend performance rights to pre-1972 sound recordings, while leaving everything else about those works uncovered by federal copyright law. In other words, the RIAA (via SoundExchange) wants to only put the parts of copyright law it likes on pre-1972 sound recordings, while keeping the rest understate laws. And they claim this is about RESPECT?

But here's where it gets really, really ridiculous. To "support" this new legislation from Holding and Conyers, which they're calling "The RESPECT Act," and which they claim is all about getting musicians paid... they trotted out a bunch of famous musicians who support this law.

Project72 kicks off with an open letter, signed by more than 70 recording artists, calling on digital radio to treat all sound recordings equally and to "pay for all the music they play." Artists and bands urging these services to "do right by legacy artists" include: The Allman Brothers Band, The Beach Boys, Roseanne Cash, Melissa Etheridge, Al Green, B.B. King, The Moody Blues, Cyndi Lauper, Martha Reeves, members of Steely Dan, The Supremes, The Temptations, Three Dog Night, and many more.

Note that they say "pay for all the music they play." They do not say to "pay the artists for all the music they play." And that's because SoundExchange and the record labels have a rather long history of not actually paying the artists. Respect!

Hell, you'd think that the RIAA/SoundExchange would have the common sense to check to see whether or not any of the big name stars they brought out had a history of being screwed over and simply not paid by their RIAA labels before attaching them to this campaign. But it appears they did not. Looking through the list of artists who are part of the campaign (beyond just the headliners listed above), we see... quite a few disputes involving the RIAA not paying those artists. All of the following artists signed onto this campaign, despite the fact that RIAA-associated labels have a long history of screwing them over.

The widow of "Dave" in the famous Sam & Dave duo had to sue Atlantic Records for unpaid royalties in 2001.

Gene Chandler's label Vee-Jay, on which he recorded "Duke of Earl," was infamous for not paying royalties and actually went bankrupt when threatened with lawsuits for unpaid royalties.

Mark Farner, of Grand Funk Railroad, was paid $350 a week for the first two years as an "employee" and, after a dispute with the band's "manager," had to give up all the rights to the music anyway (meaning he wouldn't get paid for those songs anyway).

Roger McGuinn, from the Byrds, has told Congress before that he never received royalties (beyond a "modest advance") for the 15 albums he recorded with the band, suggesting that the Byrds are still considered "unrecouped" and any money that might get paid out would just go to his label rather than him anyway.

An early member of Steely Dan has been suing claiming that he hasn't received any SoundExchange royalties he's owed.

And that's just a sampling from the list (didn't have time to go through everyone, so just picked more recognizable names). While yes, they're now arguing for "royalties" from Pandora and from Sirius XM, they might want to look more closely at who they've partnered with to seek those royalties. After all, if the RIAA hadn't blocked efforts to federalize those pre-1972 recordings, this wouldn't even be an issue. And, more to the point, since the labels own the copyrights on most of these songs anyway, the royalties are going to go into their coffers, and as the list above shows, the RIAA labels seem to have nearly perfected the process of not paying artists.

If Reps. Holding and Conyers really wanted to "respect" such artists, perhaps it would focus on encouraging them to actually avoid the record labels who have worked so hard to not pay them in the past.

from the wtf? dept

The RIAA is not exactly known for its positive treatment of musicians. If you're at all familiar with the art of RIAA accounting, you'd know about how they structure deals to totally screw over musicians, doing everything possible to make sure they never get paid a dime. Yes, many are given advances, but those advances are "loans" on terrible terms in which the labels add on every possible expense that needs to be "paid back" before you ever see another dime. Very few musicians ever "recoup" -- even after the labels have made back many times what they actually gave the artists. For the most succinct example of how the labels make out like bandits, profiting mightily while still telling artists they haven't recouped, here's Tim Quirk, who a few years back explained how it worked with his band, Too Much Joy (TMJ):

A word here about that unrecouped balance, for those uninitiated in the complex mechanics of major label accounting. While our royalty statement shows Too Much Joy in the red with Warner Bros. (now by only $395,214.71 after that $62.47 digital windfall), this doesn't mean Warner "lost" nearly $400,000 on the band. That's how much they spent on us, and we don't see any royalty checks until it's paid back, but it doesn't get paid back out of the full price of every album sold. It gets paid back out of the band's share of every album sold, which is roughly 10% of the retail price. So, using round numbers to make the math as easy as possible to understand, let's say Warner Bros. spent something like $450,000 total on TMJ. If Warner sold 15,000 copies of each of the three TMJ records they released at a wholesale price of $10 each, they would have earned back the $450,000. But if those records were retailing for $15, TMJ would have only paid back $67,500, and our statement would show an unrecouped balance of $382,500.

In other words, musicians don't get paid anything in most cases, while the labels can earn a tidy profit for years and years, still insisting the band hasn't recouped. It's why a band can sell a million albums and still owe $500,000.

I bring this up, because of the latest ridiculousness from the RIAA, claiming that it "stands behind" artists who aren't making enough money. We've already written about the latest lawsuit against Pandora, in which the RIAA/Soundexchange are saying that Pandora isn't paying pre-1972 artists (despite the fact that the RIAA itself refuses any attempt to put those recordings under federal copyright law, which would mandate compulsory licenses). We've also covered the ridiculousness of the RIAA releasing bizarre statements from artists like Steve Cropper, pretending that programmers still get paid for code they wrote in 1962.

But now it's reached truly ridiculous levels. musicFirst, a lobbying group put together by SoundExchange and the RIAA (potentially violating some laws), has put out an astoundingly ridiculous blog post, in which it discusses these lawsuits over pre-1972 sound recordings, by arguing that it is standing up for pre-1972 artists and not letting them "fade away" (a weak reference to a Buddy Holly song).

What a shady move. Fans will go to record stores to pay for this timeless music, but billion dollar corporations won’t pay a dime. And these services sell those same fans stations like the “60s on 6” and the “Buddy Holly station” yet refuse to give one dime of subscribers’ payments to the artists that made the music on those stations.

No matter what the outcome is in courts of law, Sirius XM and Pandora will pay a hefty price in the court of public opinion and in Congress. We love and respect our pre-72 artists and we will stand up for them. We will not let them fade away.

Oh really? You won't let those artists fade away? Then I assume you'll be going back and paying all of those artists you screwed over for decades, right? Let's start with Lester Chambers, for example, who got some attention a couple years ago, for how the RIAA totally fucked him over and let him fade away:

Of course, it wasn't the RIAA, SoundExchange or musicFirst who helped him out. It was the internet, led by Reddit founder Alexis Ohanian, who helped Chambers raise over $60,000 on Kickstarter for a fantastic new album (it really is great, if you haven't yet heard it) -- and that money went to Chambers, not to a label who then refused to pay royalties. Or how about all of those artists who are seeking to take back their copyrights thanks to the copyright termination clause, which the RIAA is fighting tooth and nail against -- the same copyright termination clause that the RIAA's number two guy tried to secretly delete from copyright for musicians, while he was a Congressional staffer (months before taking his $500,000 salary at the RIAA, where he's remained until today).

So, whether or not Pandora and Sirius XM are right or wrong in how they handle the streaming royalties on pre-1972 works, the idea that the RIAA is somehow out there "protecting" older artists and not letting them fade away is a sick joke.

from the we'll-wait dept

So, we already wrote about the RIAA's big new legal attack on Pandora over royalties on pre-1972 sound recordings. The legal issues there are complex and convoluted, involving a mix of state common law along with federal copyright law. However, the RIAA has clearly decided that it's not going to delve into the nuances there, preferring to go with totally bogus spin. This started with an opinion piece by SoundExchange's CEO, in which he claimed that it was unfair that artists from pre-1972 works weren't getting paid. And with the launch of this lawsuit, the RIAA is trotting out some artists who are making similarly bogus statements:

The RIAA circulated the lawsuit on Thursday along with quotes from artists or their heirs. "It’s an injustice that boggles the mind," says Booker T. & the MG's Steve Cropper. "Just like the programmers who deserve to be paid for their work, I deserve to be paid for mine.”

This depresses me, in part, because I'm a huge Steve Cropper fan -- and have spent tons of money purchasing a variety of music from Booker T. & the MG's over the years (and plenty of other of Cropper's work both at Stax and elsewhere). However, this is a really unfortunate and misleading argument. It's obviously an attempt to hit at those terrible "techies" at Pandora, implying that Pandora's engineering staff continually gets paid for their work.

But it actually underlines how silly the RIAA's argument is here. Because no Pandora programmer expects to get paid for his work 50 years from now. They get paid today to work today. And that's it. If that person leaves Pandora tomorrow, then they don't keep getting paid for it. Nor do they expect their children and grandchildren to keep getting paid for it. Booker T. and the MG's biggest hit, Green Onions, came out in 1962. It would be great if Cropper could point to a programmer who is still getting paid for code he wrote in 1962. Because I would imagine it's not a very big list.

This is also why many of the other quotes the RIAA is pushing concerning this effort are so misleading as well. Buddy Holly's wife, Maria Elena Holly, rightly notes that "Many artists from the 1950s are retired and struggling to support themselves or have families or heirs who are trying to make ends meet." That is, no doubt, true. But that's a different issue. Copyright was never meant to be a welfare system for artists. It was never meant to keep paying them in retirement. It was meant to be an incentive to create, and once it worked, that was it. In fact, under the copyright laws that were in place in 1958 when Buddy Holly released his hit "Everyday," the absolute longest that the copyright on that song could have lasted was 56 years. In other words, when Holly released that song, he knew that by 2014 (hmmm...) that song would be in the public domain. So it seems, well, a bit unseemly to suddenly be whining about it now.

In fact, I'm sure that many programmers from the 1950s are similarly "retired and struggling to support themselves or have families or heirs who are trying to make ends meet." And many of those retired programmers created the underlying structure and systems for today's computers and internet, which has created so much value for the world. But we don't see them and their heirs whining about how the world owes them a living for work they did more than half a century ago.

And this is the problem. There are almost no professions in the world in which you get to do some work (even if it's amazing work) half a century ago, and then still have people paying you for it today. To act like this is some sort of massive offense just seems silly and misguided.

from the after-losing-on-trying-to-shake-them-down dept

Just a few days ago, we wrote about how the record labels were trying to have it both ways. That is, on the one hand, they are arguing in a variety of cases that the DMCA shouldn't apply to pre-1972 sound recordings, while also arguing against any attempt to treat pre-1972 sound recordings the same as if they were under federal copyright law. At the same time, they are claiming that it's somehow unfair that Sirius XM and Pandora aren't paying statutory licensing fees on those very same pre-1972 recordings.

Having already sued Sirius XM over the issue last fall, the RIAA's record labels have now targeted a similar lawsuit at Pandora. The lawsuit itself is highly misleading, taking statements from Pandora totally out of context (the labels have a habit of doing this). The most obnoxious of these misrepresentations is the RIAA's claim that Pandora recently stated in SEC filings that there's a risk factor if the company is "required to obtain licenses from individual sound recording copyright owners for the reproduction and public performance of pre-1972 sound recordings."

The RIAA presents this as if it's Pandora trying to get out of paying. But that's not what Pandora is saying at all. It's noting that because pre-1972 works are not covered by the various rates that it pays which are set by the Copyright Royalty Board, in order to secure the rates, it would need to negotiate individually with every copyright holder for the right to stream those works in every single state. But it's noting that as a risk factor -- because, as Sirius has pointed out in its own response to the similar lawsuit, decades have gone by and the labels have never been asking for licenses for performances of pre-1972 works. And those works have been used for years, license free, by TV and radio broadcasters, bars, restaurants and a variety of other places. The real risk is that Pandora, which has relied on the fact that it can take compulsory rates, would then suddenly have to negotiate with everyone, which would be a massive headache. And this is the mess caused by the weird way in which pre-1972 sound recordings are treated.

Again, those works are not covered by federal copyright laws, which include specific rights over performances of works, which was something of a new concept when it was added to federal copyright law. The various state laws that these works are covered by are generally common law concepts around misappropriation and unfair competition. So the big question is whether or not "performing" a work falls under such common law concepts. Historically, these claims were mostly focused on making unauthorized copies. Performing the work has generally been considered a separate issue. This makes it a bit questionable that the RIAA is now suddenly seeking to reinterpret a big swath of history around how those works were legally used -- which also raises a concern about "laches" or how timely these lawsuits are. The RIAA has had decades to complain about these practices, and is just doing so now...

And, of course, remember that this is all happening just a month or so after the publishing arms of the very same labels were found to have been colluding unfairly to jack up Pandora's rates. Basically, the legacy recording industry players are now looking for just about any way possible to make Pandora pay even more. This isn't a surprise. It's how the industry has always worked. When they're struggling to figure out ways to make money, they look at anyone successful and assume it's their fault that the legacy players are making less money. So, rather than innovating, they try to find legal ways to force more money out of the innovators and into their own hands. This is just the latest example in a very long line of such cases.